Friday, December 30, 2011

“A former spouse is not entitled to receive benefits that accrue after
the dissolution of the parties' marriage.” Rivero v. Rivero, 963 So. 2d
934, 937 (Fla. 3d DCA 2007). Section 61.075, Florida Statutes (2008),
provides that in a proceeding for dissolution of marriage, the court shall
equally distribute the marital assets and liabilities between the parties.

The statute defines “marital assets” as “assets acquired ... during the
marriage, individually by either spouse or jointly by them.” This
encompasses assets that have been enhanced or appreciated in value
“resulting either from the efforts of either party during the marriage or
from the contribution to or expenditure thereon of marital funds or other
forms of marital assets, or both.” § 61.075(6)(a)1.a.–b., Fla. Stat. (2008).
See also Boyett v. Boyett, 683 So. 2d 1140, 1141 (Fla. 5th DCA 1996)
(holding that it is not permissible for the former wife to benefit from the
former husband's labor after the divorce); Brown v. Minning, 757 So. 2d
628, 630 (Fla. 5th DCA 2000) (holding that “current law provides that a
spouse should not receive benefits accrued after dissolution of the
parties' marriage”).

Section 61.075(3), Florida Statutes (2008), directs trial courts as to
the distribution of marital assets and liabilities:
In any contested dissolution action wherein a stipulation
and agreement has not been entered and filed, any
distribution of marital assets or marital liabilities shall be
supported by factual findings in the judgment or order based
on competent substantial evidence with reference to the
factors enumerated in subsection (1). The distribution of all
marital assets and marital liabilities, whether equal or
unequal, shall include specific written findings of fact as to
the following:

(a) Clear identification of nonmarital assets and ownership
interests;
(b) Identification of marital assets, including the individual
valuation of significant assets, and designation of which
spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of
which spouse shall be responsible for each liability . . . .
§ 61.075(3), Fla. Stat., (2008).

The trial court must make reference to the equitable distribution factors in 61.075(1).This and other courts have reversed final judgments of dissolution when the trial court failed to comply with 61.075(3). See, e.g., Dorsett v. Dorsett, 902 So. 2d 947, 954 (Fla. 4th DCA 2005) (finding that “the trial
court erred by not making written findings identifying and assigning values to the marital assets and liabilities, in violation of section 61.075, Florida Statutes”); Pignataro v. Rutledge, 841 So. 2d 636, 638 (Fla. 2d
DCA 2003) (reversing because “the final judgment does not identify or value any of the parties’ assets or liabilities, and it provides no factual findings to support the distribution scheme”); Whelan v. Whelan, 736 So.
2d 732, 733 (Fla. 4th DCA 1999) (reversing a final judgment because it awarded the husband’s interest in the marital home to the wife without providing a valuation of the marital home); Singleton v. Singleton, 696 So.
2d 1338, 1338-39 (Fla. 4th DCA 1997) (reversing a final judgment because, among other reasons, it did not comply with 61.075(3)).

Retaining jurisdiction in the final judgment to award attorney’s fees!

Where the trial court fails to address a request for attorney’s fees and costs or to reserve jurisdiction to consider the issue, the final judgment should be reversed and remanded for entry of a corrected judgment
reserving jurisdiction to address the request for attorney’s fees and costs. See May v. May, 908 So. 2d 558, 559 (Fla. 2d DCA 2005); Yangco v. Yangco, 901 So. 2d 217, 222 (Fla. 2d DCA 2005); see also Singer v.
Singer, 38 So. 3d 889 (Fla. 4th DCA 2010); Perez v. Perez, 846 So. 2d 685 (Fla. 4th DCA 2003). In Harbin v. Harbin, 762 So. 2d 561 (Fla. 5th DCA 2000), the wife petitioned the court for modification of child support and requested attorney’s fees. Her pretrial statement included a request for fees, and at the hearing she asked the court to rule on her entitlement to fees. When the trial court entered its final judgment of modification, it did not include a reservation of jurisdiction to determine fees. The wife moved for rehearing, requesting a ruling on her entitlement to attorney’s fees, but the trial court summarily denied the motion for rehearing. On appeal, the Fifth District held that the trial court should have determined the issue of attorney’s fees and should have reserved jurisdiction for that purpose. The court further explained that even though the trial court failed to reserve jurisdiction on attorney’s fees in its final judgment, “it nevertheless had jurisdiction to amend its final judgment to add the reservation of jurisdiction on the wife’s entitlement to attorney’s fees as the former wife had timely filed a motion for rehearing on this issue.” Id. at 563. Therefore, the court reversed to require amendment of the judgment to reserve fees.

The trial court's discretion in rejecting the general magistrate’s factual findings.

In Anderson v. Anderson, 736 So. 2d 49 (Fla. 5th DCA 1999), the
court held as to the trial court’s standard of review of a master or
magistrate’s report:

It is clear that if one objects to a master’s report, the trial
court has an obligation not merely to consider the findings
and recommendation of the master but also to review the
entire file. But the review is not intended to permit the trial
court to make its independent finding of facts or to reach its
independent conclusion as to the legal effect of such facts.
The review of the entire record is to ascertain whether the
master’s finding is supported by competent evidence and to
see if the master’s conclusions pass the Canakaris[1] test.
Id. at 50-51. In Reece v. Reece, 449 So. 2d 1295 (Fla. 4th DCA 1984),
this court held:

The findings of fact and conclusions drawn therefrom may
not be rejected by the trial court in the absence of clear
error. To put it another way, the role of the trial court in
reviewing the findings and determinations of the master are
similar to those of the appellate court in reviewing a trial
court’s findings and determinations. This rule is subject to
the observation that it is the trial judge “who under the law
is charged with the duty and responsibility of making
findings of facts and entering the final decree.” It is also
recognized that the trial court may come to different legal
conclusions than the master, based upon the master’s
findings of fact, without committing reversible error.
Id. at 1295-96 (citations omitted). Citing Reece, this court held that
“[w]hile the master’s report is clothed with a presumption of correctness
as to its factual findings, the trial court may com
contract impair his or her obligation to support a minor child, and its corollary that only such
contracts that are consistent with the best interests of the minor child
will be enforced.” Essex, 503 So. 2d at 1366 (citations omitted).
In Shellmyer v. Shellmyer, 418 So. 2d 477 (Fla. 4th DCA 1982), after a
judgment of dissolution ordered monthly child support payments by the
father, the parents entered into an out-of-court lump sum settlement
under which the father conveyed his equity interest in the former marital
residence to the mother in lieu of past and future periodic child support.
The mother returned to court, claiming that their agreement was
forbidden “because the basic right of a minor child to support cannot be
affected by an agreement between the parties.” Id. at 477. When the
trial court ruled on the mother’s motion, it ordered that the father
resume paying child support as well as his arrearages. However, the trial
court did not give the father any credit for his interest in the marital
residence which he had transferred to the mother. On appeal, this court
held that the parties should be returned to the original status quo. The
father was to resume paying child support from the date of its cessation,
but he would get credit for the arrearages against the value of his equity
interest in the marital home.

The law is well established that the trial court must set forth specific
findings concerning the hourly rate, the number of hours reasonably
expended and the appropriateness of reduction or enhancement factors.
See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla.
1985); see also Macarty v. Macarty, 29 So. 3d 434, 435 (Fla. 2d DCA
2010) (‘“[A]n award of attorney’s fees without adequate findings justifying
the amount of the award is reversible even where the appellant has
provided an inadequate record of the trial court proceedings.’” (quoting
Esaw v. Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007))). “The
presence of competent substantial evidence to support the award does
not obviate the need for such specific findings.” Hoffay v. Hoffay, 555
So. 2d 1309, 1310 (Fla. 1st DCA 1990).